Thanks to the crowd who came out for this IFLS panel on Thursday November 22. As promised, I have collected references from the three presenters here, and have also tried to set out the questions that the audience raised at the end of the panel.

Prof. Brenda Cossman

The paper on which the talk was based is available: #MeToo, Sex Wars 2.0 and the Power of Law (September 2018). Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming) . Available at SSRN: https://ssrn.com/abstract=3257862

ABSTRACT: In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s.I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.

REFERENCES FROM PROF. PARMAR

Nivedita Menon, Is Feminism about ‘Women’?: A Critical View on Intersectionality from India, Economic & Political Weekly. (Apr. 25, 2015)

I do not think this one is available open access. Here is the abstract: Feminism requires us to recognise that “women” is neither a stable nor a homogeneous category. Does intersectionality as a universal framework help us to capture this complexity? This paper argues that it does not. It addresses this question through the intricacies of the terrain that feminist politics must negotiate, using the Indian experience to set up conversations with feminist debates and experiences globally. Feminism is heterogeneous and internally differentiated. We need to pay attention to challenges to the stability of given identities– including those of “individual” and “woman.” These challenges constitute the radically subversive moments that are likely to be most productive for feminism in the 21st century.

Woolley, Alice and Darling, Elysa, Nasty Women and the Rule of Law (January 21, 2017). 51 USF Law Rev 507, 2016-2017. Available open access at SSRN: https://ssrn.com/abstract=2903214.

Abstract: Lawyer bashing is a robust and accepted social tradition. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-lawyer criticisms. Criticisms and attacks on women lawyers are personal and gendered, as well as being intense and hostile, in a way that differs from the generic, often humorous, and impersonal nature of traditional antipathy to the legal profession. And even when women lawyers are viewed positively, commentary focuses on their looks, clothes and families, in a way that is not the case for men. This paper identifies the reasons for and consequences of how we talk about women lawyers.

“Are we deranged? The acclaimed Indian novelist Amitav Ghosh argues that future generations may well think so. How else to explain our imaginative failure in the face of global warming? In his first major book of nonfiction since In an Antique Land, Ghosh examines our inability—at the level of literature, history, and politics—to grasp the scale and violence of climate change.

The extreme nature of today’s climate events, Ghosh asserts, make them peculiarly resistant to contemporary modes of thinking and imagining. This is particularly true of serious literary fiction: hundred-year storms and freakish tornadoes simply feel too improbable for the novel; they are automatically consigned to other genres. In the writing of history, too, the climate crisis has sometimes led to gross simplifications; Ghosh shows that the history of the carbon economy is a tangled global story with many contradictory and counterintuitive elements.

Ghosh ends by suggesting that politics, much like literature, has become a matter of personal moral reckoning rather than an arena of collective action. But to limit fiction and politics to individual moral adventure comes at a great cost. The climate crisis asks us to imagine other forms of human existence—a task to which fiction, Ghosh argues, is the best suited of all cultural forms. His book serves as a great writer’s summons to confront the most urgent task of our time.”

Jacobowitz, Jan L., Lawyers Beware: You are What You Post! The Case for Integrating Cultural Competence, Legal Ethics and Social Media (October 24, 2014). SMU Journal of Science & Technology Law Review (Forthcoming). Available open access at SSRN: https://ssrn.com/abstract=2514678

Abstract: First learn the meaning of what you say, and then speak. –Epictetus

Words used carelessly, as if they… do… not matter in any serious way, often allow… otherwise well-guarded truths to seep through. –Douglas Adams

Happy Mother’s Day to all the crack hoes out there. It’s never too late to tie your tubes, clean up your life and make difference to someone out there that deserves a better mother. –Assistant State Attorney in Orange County, Florida

No thought left unspoken…social media networking — ubiquitous in our society — provides the opportunity for individuals to share their moment-to-moment thoughts and actions. Social media has created communities and its own culture. Social networking communities have empowered individuals to join together to stage uprisings, support charitable causes, launch entrepreneurial ventures, and generally share the accomplishments and defeats of their daily lives.

Many lawyers have joined social media networks and are actively participating in both their professional and personal lives. Some lawyers have found social media networks to be beneficial in marketing their practices and in obtaining information and evidence to more effectively represent their clients.

Unfortunately, other lawyers have found themselves caught in a quagmire of ethical and professional missteps resulting in disciplinary problems and loss of employment. These lawyers often fail to appreciate the application of the legal ethics rules and standards of professionalism to the use of social media. Moreover, like many other individuals engaged in social media, these lawyers generally seem to lack cultural awareness and perspective on the far-reaching impact that a social media communication may have upon the audience and ultimately upon the communicator.

This article explores the importance of cultural competence both as a critical component of effective and ethical legal practice and as it pertains to a lawyer’s participation in social media networking. The article will first define cultural competence and its significance for the legal profession. Next, the article will discuss the culture of the legal profession as it is reflected in social science research, popular culture, and scholarly works. Then, the article will examine the culture of social media and the legal profession’s participation in this culture. Finally, the article will explore the interrelationships of cultural competence, the legal profession, and social media with the goal of providing insight and guidance for lawyers to professionally and ethically engage in social networking.

I pointed to the fact that the hashtag was originally created by a Black woman in the U.S., Tarana Burke, but more importantly, as I understood it, Tarana Burke’s inspiration was realising how few services were available in majority-minority neighbourhoods, services open to and welcoming Black and brown girls who had experienced sexual assault and abuse. Her work was about imagining, funding, and creating those services and spaces. The space between this project, and the the white, celebrity driven rebirth of #metoo as a hashtag for shared stories of assault and harassment on social media is instructive in a number of ways about what kind of work is bring done by #metoo.

I noted that there is a long history of feminist work which actively problematizes the criminal law and state engagements. I highly recommend the work of the activists and scholar-activists who comprise INCITE! A good introduction is available here.

See also Critical Resistance and Incite!, “Critical Resistance-Incite! Statement on Gender Violence And the Prison-Industrial Complex” (2003) 30:3 (93) Social Justice 141, online: <https://www.jstor.org/stable/29768215>. You could also consider the arguments in Osgoode Prof. Dianne Martin’s “Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies.” Osgoode Hall Law Journal 36.1 (1998) : 151-188. https://digitalcommons.osgoode.yorku.ca/ohlj/vol36/iss1/4. There are more recent treatments, but my point is, much of this material is well over a decade old. There’s more before that.

Concern about what happens when state punishment is understood to be the solution to violence against women is not new.

I also referenced extensively BU Law Dean Angela Onwuachi-Willig’s piece in the Yale Law Journal Forum:

ABSTRACT. Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the moments preceding and following #MeToo’s resurgence. Ultimately, this Essay argues that the persistent racial biases reflected in the #MeToo movement illustrate precisely why sexual harassment doctrine must employ a reasonable person standard that accounts for complainants’ different intersectional and multidimensional identities.

AUDIENCE QUESTIONS

We took some excellent questions from the Audience without trying to answer them – I’ve set them out here in a general way and my apologies for damage I have done to the ideas as originally expressed:

Questions about the ways that critiques from women of colour have approached #metoo, especially in the context of Islamophobia, and state securitization. This question specifically referenced the Toronto murders allegedly committed by Alex Minassian, and calls from some prominent feminists (see e.g. here) to call these and other misogynistic attacks ‘terrorism’, a position that ignores the significant harm that has been visited on Muslim communities post 9-11 through laws that focus on terrorism, and the weight of critique generated in scholarly and public circles by scholars, including feminist scholars, who have focused on post 9-11 state surveillance and narratives about terrorism. Heidi Matthews has a comment on the question of the “terrorism” label here in The Conversation.

There was a question that focused on another form of law, beyond the criminal, which has been significantly engaged in these #metoo conversations, the law of defamation. Professor Matthews referenced this issue in her discussion of the “Shitty Media Men List” and Stephen Elliot’s defamation lawsuit against Moira Donegan. How does, perhaps in particular, Prof. Cossmans’ analysis of the role that law is playing in our understandings of sexual harms position this form of legal regulation?

Another question focused on the distinction between de facto and de jure wrong, that is things that are wrong because law says they are wrong, but might not otherwise be recognized socially or morally as wrong, and things that are de facto wrongs – that are understood to be morally wrong regardless of what law says about them. The significance of consent in laws about sexual harassment and assault may tend to blur this dichotomy. Can this distinction help us understand what work is being done by the various positions feminists and others have taken in this debate.

One question raised Ghomeshi – this was from Osgoode PhD Candidate Dana Phillips, author of this “Let’s Talk About Sexual Assault: Survivor Stories and the Law in the Jian Ghomeshi Media Discourse.” Osgoode Hall Law Journal 54.4 (2017) : 1133-1180. https://digitalcommons.osgoode.yorku.ca/ohlj/vol54/iss4/9, who referenced the rehabilitation narratives of men named in high profile #metoo cases, asking what we can learn from these reflections on the work that #metoo is doing (this is NOT doing justice to what Dana said, and I’m particularly concerned about that because I’ve named her! So Dana, if you correct me, or want to expand on this just let me know.

Another question asked how we could or should talk about both #metoo and the underlying issues, given how many people, especially men, seem scared to talk about it. This question pointed the challenge of how to engage towards the cultural change that all interventions suggested was more likely to help resolve the harms that #metoo has (re)surfaced, than a thickly applied layer of criminal law.

Professor Ena Dua, a colleague at York, had to leave before putting her questions on the table, so I followed up with her and she came back with four! (1) How do we understand the role of the media in these processes? “It seems that the media has taken on the role of an investigation – and the prosecutor’s role. The public takes on the role of the judge. How does that make affect our thinking about the limited possibilities of the law that two of the speakers talked about?”. (2) Relatedly, about the reporting of these events, and the inclusion of “intimate and graphic sexual details – including descriptions of folks bodies”. How do Marxist or sex radical approaches analyse this somewhat secondary aspect, in particular where the complainant has not agreed or been interviewed. (3) Thirdly, Ena wanted to talk about not criminal law, but labour and employment law and the ways these position the responsibility of the employer where the employer is not the person engaging in the complained of behaviour. (4) My favourite question from Ena ties the three talks together by referencing Ena’s perception that from the beginning of #metoo Indian feminists have been both vocal and divided on its potential. Having heard similar from folks in South Africa and Somalia, Ena wanted to ask whether feminists in the global south have a different relationship to the possibilities of the law than those in the West. For me this also raised the question of a matrix of divisions, noting political commitments, location and positionality, and, frankly, lawyer/legal scholar, or not.

Join the Institute for Feminist Legal Studies {& invite your friends] as three feminist legal scholars critically think through the ways in which feminists and others are rallying under the banner of #metoo